Editor’s Note: Andrew Ngurumi recently wrote this post on the blog on the inclusion of farmers in Kenya’s agricultural policy. The post generated healthy discussion and an insightful question arose from the debate. One of our readers asked, what should policymakers do? Specifically in light of Andrew’s article.Here is his analysis.

Introduction

In heavily mechanized and science-driven agriculture, on the one hand, it is assumed persons, mostly seed companies of an international pedigree, who breed, develop or discover a seed or a plant variety[1] are producers while farmers are deemed to be consumers of plant breeders’ products through buying the seeds and planting the protected plant varieties. This dichotomy disregards the quintessential role of farmers from time immemorial to save, use, exchange and sell farm-saved seed/propagating material in order to promote agrobiodiversity and food security and nutrition.

Introduction

Influencers endorsing brands and advertisement is
the new normal. In their practice, influencers are able to build direct
relationships with their key consumers and create a brand loyalty. Thus brands
targeting specific consumers, their needs and wants, opt to use them. In advertising,
influencers are preferred based on their trust within a niche community,
retention of a loyal following and knowledge or experience about what they are
advertising.[1]

On 11th March, 2019 notable influencers were endorsing Always products sold in Kenya on #feelthecomfortalways advertisement on Instagram. Influencers were tagged in the advertisement in order to promote the product and to achieve a bigger and specific target audience. On social media, particularly Twitter, consumer complaints on the quality of the Always product have been raised and recorded on #myalwaysexperience, which began in early February 2019.

In light of this on-going case, this article examines
misleading representations in influencer
led advertisement on social media. A misleading
representation occurs when a shared practice or representation misleads
through the information it contains, or its deceptive presentation, and causes
or is likely to cause the ordinary consumer to take a different decision.[2] Thus, what statements made by influencers
would be termed as misleading representations
on social media? How are misleading
representations enforced? Materiality in enforcing consumer complaints on misleading representations made by influencers
on social media?

Misleading Representations on Social Media

In advertising influencers make often statements,
referred to as testimonials, from previous and/or current customers about their
experience with a product or service.[3] The
testimonials used, such as opinions, value judgments, and subjective
assessments on a product, have to be truthful. The consumers should not be
misled on any aspect of a product or service which is capable of being
objectively assessed in light of generally accepted standards.[4]
For instance, a person falsely presents that goods and services have qualities,
uses, and benefits they do not have.[5]

Generally, if proven that the Always products in #feelthecomfortalways
do not have the said benefits and qualities, and the representations caused an
ordinary consumer to make a different decision, the influencers could be liable
for misleading representations. In the Competition Act, a person charged with
misleading representation can either be fined ten million shillings or five
years imprisonment or both.[6]

Materiality in Enforcing Representations on Social Media

In addition to the determining whether the
representation is misleading and the effect of the representation on an
ordinary consumer, in James Kuria v Attorney General & 3 others eKLR,
Mativo J, imposed a materiality standard. Materiality is defined as being of consequence or importance, or pertinent or
essential to the matter. The effect of materiality is setting a different test
for a misleading representation. The old test was an ordinary consumer. The new
test that of an average consumer who is reasonably well informed and reasonably
observant and circumspect.

In so doing, in the Always Kenya case, the
influencers in #feelthecomfortalways advertisement are merely tagged. The
average consumer who is well informed and reasonably observant will know the
influencers are making representations on behalf of Always Kenya. Thus the
influencers who are tagged would potentially not be liable for misleading
statements.

Additionally, the Competition Authority[7] and
Inspectors under the Department of Weights and Measures[8] mandated with receiving and investigating
misleading representations will be forced to consider materiality.

Conclusion

We have a Court decision imposing the materiality
and average consumer test and a standard in the Consumer Protection Act and the
Competition Act on misleading representations. The result of this a possible duplicity
of standards on misleading representations. Inevitably enforcement mechanisms
will prove to be difficult task.